Hearts Bluff Game Ranch, Inc. v. United States, 669 F.3d 1326 (Fed. Cir. 2011)

(plaintiff brought constitutional takings claim based on denial by U.S. Army Corps of Engineers (COE) of plaintiff’s proposal to operate a mitigation bank on its property; plaintiff purchased about 4,000 acres of land in Texas for use as mitigation bank to offset development on other land that impacted wetlands; under mitigation banking program, landowners can apply for mitigation banking instruments to participate in program and then sell credits under the instrument to developers to offset environmental impact of project where CWA Sec. 404 permits granted; plaintiff contacted COE before making purchase and was assured that land would be suitable for mitigation banking; later learned that state had plans to make area a reservoir and COE denied plaintiff’s application because plaintiff land might not exist in perpetuity; reconsideration denied and plaintiff sued for constitutional taking; U.S. Court of Federal Claims dismissed complaint on basis that plaintiff had no property interest that could be taken, but only a hope that plaintiff could create mitigation bank; on appeal, court affirmed on basis that plaintiff did not have recognizable property interest; CWA Sec. 404 permits separate and distinct from mitigation banking program; while denial of CWA Sec. 404 permit can be subject of taking, mitigation bank operators do not necessarily possess such permits; plaintiff never entitled to operate mitigation banking program on its land; court has previously rejected claims of existence of cognizable property interest in government programs where government retains discretionary authority to deny access to the such program where property is subject to pervasive government control or where property entirely product of government regulations; hope and expectation of future property use are not, by themselves, a recognizable property interest).

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